Amendments to allow for the cancellation of transitional (temporary) visas and transitional (permanent) visas in response to Moore v Minister for Immigration and Citizenship
19 September 2008 Legislation Change
Client summary
From 19 September 2008, certain provisions in the Migration Legislation Amendment Act (No. 1) 2008 will commence, including amendments to the Migration Act 1958 ('the Act') relating to the cancellation of transitional (temporary) visas and transitional (permanent) visas. These amendments have two effects. Firstly, purported decisions to cancel transitional visas on character grounds that are now technically invalid on the basis that the visas were ‘held’ by a visa holder and had not been ‘granted’, will now become valid. Secondly, a new section is being inserted into the Act (section 501HA) to provide that, for the purposes of the character provisions, transitional visas will be taken to have been granted.
Affected legislation
The following provisions of the Act are amended:
Section 501HA
Additional information:
These amendments were made in response to comments made by the Full Federal Court that cast doubt on whether character cancellation decisions made in respect of certain transitional visas were valid, based on a technicality that the cancellation provision (section 501 of the Act) only applied to visas that had been ‘granted’, and not ones that were simply ‘held’. Without redress, it would not be possible to cancel certain transitional visas on character grounds, as is the case with all other visas.
Transitional provisions:
New section 501HA applies in respect of a decision to cancel a visa that is made under the Act on or after 19 September 2008.
Item 7 of Schedule 4 to the Migration Legislation Amendment Act (No. 1) 2008 commences on 19 September 2008. Upon commencement, any decision or purported decision to cancel a transitional visa under sections 501, 501A, 501B, 501C or 501F of the Act (as in force at any time on or after 1 September 1994 and before 19 September 2008) is valid and is taken to have always been valid as if the transitional visa has been granted.
Forms: Nil.
Instructions: The following PAM3 documents will be updated as quickly as practicable to reflect these changes:
- PAM3: s501 - Visa cancellation - Visa held but not granted.